TEAM CODE: 20-T05 (R)

13TH NALSAR JUSTICE B. R. SAWHNYMEMORIAL MOOT COURT

COMPETITION, 2020

BEFORE THE HON’BLE SUPREME COURT OF MAYEECHIN

IN THE MATTER OF –

KRISHNA NEEL VERMA FEDERAL REPUBLIC OF MAYEECHIN I

(PETITIONER) V. (RESPONDENT)

CLUBBED WITH

KRISHNA NEEL VERMA FEDERAL REPUBLIC OF MAYEECHIN II

(PETITIONER) V. (RESPONDENT)

CLUBBED WITH

KRISHNA NEEL VERMA FEDERAL REPUBLIC OF MAYEECHIN III

(PETITIONER) V. (RESPONDENT)

MEMORANDUM ON BEHALF OF THE RESPONDENT

MEMORANDUM for RESPONDENT [TABLE OF CONTENTS]

TABLE OF CONTENTS

INDEX OF AUTHORITIES .................................................................................................IV

STATEMENT OF JURISDICTION .................................................................................. VII

STATEMENT OF FACTS ................................................................................................ VIII

STATEMENT OF ISSUES .................................................................................................... X

SUMMARY OF ARGUMENTS ...........................................................................................XI

ARGUMENTS.......................................................................................................................... 1

I. A JUDGE WHO HAS EXPRESSED OPINION AS PART OF THE REFERRING

BENCH, OUGHT NOT PARTICIPATE IN THE LARGER BENCH HEARING THE
REFERRED CASE .............................................................................................................. 1

A. SUGGESTION OF INCLUSION IN THE LARGER BENCH HAS NO CONSTITUTIONAL

FOUNDATION ....................................................................................................................... 1

B. INCLUSION WILL CREATE COMPULSION UPON THE JUDICIARY ...................................... 2

1. The outcome of the instant case has a mandatory effect upon the judiciary ........... 2

2. Mandatory inclusion of the judge is unnecessary ................................................... 2

a) Mandatory inclusion will curtail the prerogative right of the chief justice to
decide the bench .......................................................................................................... 3

b) Mandatory inclusion questions the competence of other Judges ......................... 3

C. OBJECT OF CONSTITUTING BOTH THE BENCHES IS DIFFERENT ....................................... 3

II. THE MASTER OF ROSTER MUST NOT BE DEEMED TO INCLUDE FIVE

SENIOR-MOST JUDGES OF THE SUPREME COURT................................................ 4

A. CHIEF JUSTICE’S PREROGATIVE RIGHT OF THE MASTER OF ROSTER IS DERIVED FROM THE
CONSTITUTION ..................................................................................................................... 4

B. THE PHRASE ‘MASTER OF ROSTER’ CANNOT BE USED TO ADDRESS MULTIPLE JUDGES . 5

1. The Constitution of Mayeechin inscribes Chief Justice as an institution in himself .

................................................................................................................................. 5

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MEMORANDUM for RESPONDENT [TABLE OF CONTENTS]

2. The phrase ‘Master of roster’ is used to address chief justice in his individual
capacity ........................................................................................................................... 6

C. THE CONTRAPOSITION CANNOT BE DEMANDED ............................................................ 6

D. DEVIATION FROM PRESENT SCHEME TOWARDS THE SUGGESTED SCHEME IS

UNNECESSARY ..................................................................................................................... 7

1. Inclusion of five senior-most judges in the master of roster will be impracticable. 7

2. Master of Roster does not extend to regulate the functioning of a bench ............... 8

E. CHANGE IN THE PRESENT PROCEDURE WILL ACT AS AN ABERRATION IN THE

CONVENTIONS OF ADMINISTRATIVE GOVERNANCE OF THE JUDICIARY ................................. 8

III. SUPREME COURT DOES NOT HAVE THE POWER TO LAY DOWN
GUIDELINES TO REGULATE THE FEES OF THE LAWYERS ................................ 9

A. PARLIAMENT HAS EXCLUSIVE POWER TO MAKE LAWS IN THIS REGARD ........................ 9

B. REGULATION OF FEES DOES NOT FALL UNDER THE RULE MAKING POWER OF THE

SUPREME COURT .................................................................................................................. 9

IV. THE FEES OF LAWYERS MUST NOT BE REGULATED .................................. 10

A. REQUISITE GUIDELINE IS ALREADY AVAILABLE .......................................................... 10

B. GENERAL CAPPING WILL VIOLATE RIGHT TO EQUALITY .............................................. 11

C. REGULATION OF FEES WILL VIOLATE RIGHT TO PRACTICE LEGAL PROFESSION ........... 12

V. ARTICLE 21 B IS NOT UNCONSTITUTIONAL ................................................................. 12

A. ARTICLE 21B PASSES THE CARDINAL TEST OF CONSTITUTIONAL VALIDITY ................ 12

B. ARTICLE 21B HARMONIZES PART III AND PART IV .................................................... 14

C. ARTICLE 21B DOES NOT VIOLATE THE BASIC STRUCTURE DOCTRINE ......................... 14

1. Article 21B is a limb of Article 21 ......................................................................... 15

2. Article 21B is based upon the principle of equal protection as enshrined in article
14 ............................................................................................................................... 15

3. Alteration of right of citizen under Article 19 only amounts to moderate

abridgement .................................................................................................................. 16

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MEMORANDUM for RESPONDENT [TABLE OF CONTENTS]

VI. THE CITIZENSHIP AMENDMENT ACT, 2019 IS NOT LIABLE TO BE

STRUCK DOWN BEING UNCONSTITUTIONAL? ..................................................... 16

A. CITIZENSHIP AMENDMENT ACT DOES HAVE A REASONABLE CLASSIFICATION............ 16

1. The classification is founded on an intelligible differentia ................................... 17

a) Classification based on religion and place of birth applying to non-citizens is

permissible ................................................................................................................ 17

b) The differential is intelligible............................................................................. 17

c) CAA’s minimal under inclusiveness does not vitiate the classification ............ 18

2. Differential has a rational relation to the object of the act ................................... 18

a) There is presumption in favour of the constitutionality of the Act .................... 18

b) Nexus between intelligible differentia and object of the Act is already present 19

B. THE IMPUGNED ACT IS NOT IN VIOLATION OF THE PRINCIPLE OF SECULARISM ............ 19

PRAYER ............................................................................................................................. XIII

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MEMORANDUM for RESPONDENT [INDEX OF AUTHORITIES]

INDEX OF AUTHORITIES

CASES PAGE NO.

Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 (India) 13

Ashutosh Gupta v. State of Rajasthan, (2002) 4 SCC 34(India) 18

Asok Pande v. Supreme Court of India, (2018) 5 SCC 341(India) 3

B. Sunitha v. State of Telangana, (2018) 1 SCC 638 (India) 10

Bal Patil v. Union of India, (2005) 6 SCC 690(India) 19

Basheer v. State of Kerala, (2004) 3 SCC 609 (India) 18

Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra, AIR 1965 SC 682 4
(India)
Campaign for Judicial Accountability and Reforms v. Union of India, (2018) 1
1 SCC 196 (India)
Chairman, Railway Board v. Chandirama Das, (2000) 2 SCC 465 (India) 15

Chiranjit Lal Chowdhuri v. Union of India, 1950 SCR 869(India) 18

Daulat Singh Surana v. First Law Acquisition Collector (2007) 1 SCC 641 14
(India)
Dr.D.C.Saxena v. Chief Justice of India, AIR 1996 SC 2481 (India) 6

Ganga Ram v. Union of India, (1970) 1 SCC 377(India) 18

Hans Muller of Nurenburg v. Superintendent, Presidency Jail, (1955) 1 SCR 16

1284(India)
Indira Jaising v. Supreme Court of India, (2017) 2 SCC 362 (India) 11

Jagdish Pandey v. Chancellor, University of Bihar, (1968) 1 SCR 231(India) 19

Justice K.S. Puttaswamy v. Union of India and Ors., (2017) 10 SCC 1(India) 2

Kamini Jaiswal v. Union of India, (2018) 1 SCC (Cri) 297(India) 6

Kedar Nath Bajoria v. State of W.B., 1954 SCR 30(India) 19

Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461 (India) 14

13TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL MCC, 2020 PAGE | IV

MEMORANDUM for RESPONDENT [INDEX OF AUTHORITIES]

Lal Chowdhury v. Union of India, AIR 1951 SC 41(India) 11

Madhu Kishwar & Ors v. State of Bihar, (1996) 5 SCC 125 (India) 15

Mahipal Singh Rana v. State of U. P., (2016) 8 SCC 335 (India) 10

Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789(India) 13

Modern Dental College and Research Centre v. State of M. P., (2016) 7 SCC 10
353 (India)
National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680(India) 2

Olga Tellis v. Bombay Municipal Corpn., (1985) 3 SCC 545(India) 15

Ramchand v. Union of India, AIR 1963 SC 563(India) 12

S. P. Gupta v. Union of India, (1981) Supp SCC 87(India) 8

S. P. Mittal v. Union of India, (1983) 1 SCC 51(India) 19

S.R. Bommai v. Union of India, (1994) 3 SCC 1(India) 19

Satlingappa Mhetre Vs. State of Maharashtra and Ors., 2011(1) SCC 694 13
(India)
Shanti Bhushan v. Supreme Court of India, (2018) 8 SCC 396(India) 1

Shrimanth Balasaheb Patil and Ors. v. Hon'ble Speaker, Karnataka 4

Legislative Assembly and Ors.2019 SCC OnLine SC 1454(India)
State of Bombay v B.E.S., AIR 1954 SC 561(India) 19

State of Maharashtra v. Narayan Shamrao Puranik and Ors., (1982) 2 SCC 6

440(India)
State of Rajasthan v. Prakash Chand, (1998) 1 SCC 1 (India) 3

State of Sikkim v. Surendra Prasad Sharma, (1994) 5 SCC(India) 17

State of U. P. v. AjayKumar Sharma, (2016) 15 SCC 289(India) 2

State of U. P. v. S. K. Tyagi & ors., (2004) SCC All 1095(India) 11

State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75(India) 16

Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 8

441(India)

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MEMORANDUM for RESPONDENT [INDEX OF AUTHORITIES]

Suraj Mall Mohta and Co. v. A.V. Visvanatha Sastri, (1955) 1 SCR 17
448(India)
T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481(India) 17

Tribhovandas P.Thakker v. Rattilal Motilal Patel, AIR 1968 SC 372(India) 2

STATUES PAGE NO.

INDIA CONST. 4

The Citizenship (Amendment) Act, 2019, No. 47, Act of Parliament, 2019 17, 19

BOOKS PAGE NO.

3 H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 2695 (4th ed. 2008) 5

5 D. D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 5579 (8th ed. 5

2009)
BLACK’S LAW DICTIONARY (10th ed. 2009) 2

CAMBRIDGE DICTIONARY (4th ed. 2013) 2

M.P.JAIN, INDIAN CONSTITUTIONAL LAW 1415 (8th ed. 2018) 16

RULES PAGE NO.

Supreme Court Rules, 2013 1

13TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL MCC, 2020 PAGE | VI

MEMORANDUM for RESPONDENT [STATEMENT OF JURISDICTION]

STATEMENT OF JURISDICTION

The Petitioner has approached the Hon’ble Supreme Court of Mayeechin, under Article 32 of
the Constitution. The Respondent humbly submits to the jurisdiction of this Hon’ble Court.

The present memorial on behalf of the respondent sets forth the facts, contentions and
arguments in the present case.

13TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL MCC, 2020 PAGE | VII
MEMORANDUM for RESPONDENT [STATEMENT OF FACTS]

STATEMENT OF FACTS

[BACKGROUND]
The Federal Republic of Mayeechin came into existence in 1947 and has same neighbours, law
and legal systems as India. People wanted an honest and responsible government to deal with
the prevalent social, economic and political problems. The new government came to power in
2015 general elections. It is known for its radical moves and new legislations.
[THE SUPREME COURT]
Mayeechin has a very powerful and independent Supreme Court. Its judges are selected by
judges themselves. The senior-most judge is appointed as the Chief Justice. He decides the
roster which is vital to the Court’s functioning, and is Primus inter pares.
Scholars have written regarding the inconsistency in the manner of dispensation of justice by
the Supreme Court of Mayeechin, which is but natural, given the diverse background of judges.
Studies have proved a trend of lesser dismissals in cases where Senior Counsels appeared; these
Counsels charge high fees for appearance.
Determination of priority and hearing order of cases has always been very difficult owing to
pendency of thousands of cases. Generally, chronology was followed, with an exception of out
of turn listing of urgent cases (at the prerogative of the Chief Justice). Owing to pendency, this
exception amounted to de-listing of other cases and proved cumbersome for judges. To resolve
this problem, ‘Mentioning’ was incorporated vide certain circulars issued from time to time. In
order to avoid ambiguity, a new circular providing for Mentioning before an Hon’ble Registrar
was issued.
[PILS FILED BY KRISHNA NEEL VERMA]
Krishna Neel Verma v. Federal Republic of Mayeechin I: Krishna Neel Verma filed a PIL in
2007 seeking capping of lawyers’ fees and providing a Senior Counsel for legal-aid. The
Confederation of Bar (COB) filed an affidavit in favour of capping of lawyers’ fees declaring
that the current practice violates Article 14 and 21 of the Constitution. This was opposed by
the Bar Association of the Supreme Court of Mayeechin (BASCOM) as being violative of
Article 19 and counter-intuitive. It would hamper a lot of pro-bono work and cross-
subsidisation done by its members. This PIL was pending before a Constitution bench to which
it was referred.
Krishna Neel Verma v. Federal Republic of Mayeechin II: The government passed a
constitutional amendment (Art. 21B) making right to work a fundamental right w.e.f. Dec 11,

13TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL MCC, 2020 PAGE | VIII
MEMORANDUM for RESPONDENT [STATEMENT OF FACTS]

2019.Petition challenging the abovementioned amendment was filed by Krishna Neel Verma
contending that its over-breadth amounts to taking away the rightful entitlement of citizens. It
was premised on the argument that it amounts to abrogation of life, principle of equality and
justice- economic as well as social.
Krishna Neel Verma v. Federal Republic of Mayeechin III: A case pertaining to accepting
migrants on the basis of their religion was referred to a larger bench and was pending, since
then. Meanwhile, the Citizenship Amendment Act, 2019, exempting specific migrants from
being treated as illegal migrants, came into force on December 12, 2019. A hasty petition
challenging the Act was filed by Krishna Neel Verma, the very next day. The petition was
‘defective’ and pending clearance. However, upon mentioning by leading A lister senior
Counsel, Dr. Murali Lal, the Chief Justice was pleased, and he directed it to be heard by a
constitution bench along with the pending challenge to Article 21B.
However, Dr. Lal disagreed to work pro-bono and was agreeing to appear only if his full fee is
paid. Mr. Krishna Neel Verma approached several other Senior Counsels, but no one took up
the matter pro-bono. Thus, he wrote a letter to the Chief Justice seeking expedited hearing of
the PIL on Lawyer’s fee. This PIL was listed before the same constitutional bench which was
hearing other two cases vide an administrative order of the Chief Justice.
[THE PRESS CONFERENCE]
The Constitution of these bench caused discomfiture and surprise to certain judges, over their
non-inclusion in the referring bench. A press conference was held by three puisne judges of
the Supreme Court raising certain issues regarding the assignment of matters by the Chief
Justice. They also discussed the issue of constitution of benches by such former Chief Justices
whose own conduct was in question. These judges were of the unanimous opinion that it is
violation of the principle that justice must not only be done, but seem to have been done; and
is against constitutional ethos. The judges demanded that at least five judges must decide all
matters pertaining to the roster, listing, and the assignment of matters, because pendency in
itself can decide the course of justice. Furthermore, any interested party must recuse and
Mentioning must be brought within the framework of written rules. Based on this, the
preliminaries were framed. Resultantly, this matter was registered Suo Moto and called for
hearing on 18/12/2019. The Chief Justice constituted an 11-judge bench excluding himself, to
hear all matters and to reinstate the position of this Court as the Sentinel on the Qui Vive. The
matters are now fixed for hearing on all the points involved.Hence, the present petition.

13TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL MCC, 2020 PAGE | IX

MEMORANDUM for RESPONDENT [STATEMENT OF ISSUES]

STATEMENT OF ISSUES

PRELIMINARIES:

ISSUE I

WHETHER A JUDGE WHO HAS EXPRESSED OPINION AS PART OF THE REFERRING BENCH, OUGHT TO
PARTICIPATE IN THE LARGER BENCH HEARING THE REFERRED CASE?

ISSUE II

WHETHER THE MASTER OF ROSTER MUST BE DEEMED TO INCLUDE FIVE SENIOR-MOST JUDGES OF
THE SUPREME COURT?

MERITS:

ISSUE III

WHETHER THIS COURT HAS THE POWER TO LAY DOWN ANY GUIDELINES IN THIS REGARD?

ISSUE IV

WHETHER THE FEES OF LAWYERS MUST BE REGULATED?

ISSUE V

WHETHER THE CONSTITUTIONAL AMENDMENT INSERTING ARTICLE 21B IS LIABLE TO BE STRUCK

DOWN BEING UNCONSTITUTIONAL?

ISSUE VI

WHETHER THE CITIZENSHIP AMENDMENT ACT, 2019 IS LIABLE TO BE STRUCK DOWN BEING

UNCONSTITUTIONAL?

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MEMORANDUM for RESPONDENT [SUMMARY OF ARGUMENTS]

SUMMARY OF ARGUMENTS

ISSUE: 1 A JUDGE WHO HAS EXPRESSED OPINION AS PART OF THE REFERRING BENCH ,
OUGHT NOT PARTICIPATE IN THE LARGER BENCH HEARING THE REFERRED CASE.

A judge who has expressed opinion as part of the referring bench, ought not participate in the
larger bench hearing the referred case, as there is no constitutional foundation directing or
suggesting the same. A decision in affirmative by the 11 judge bench of the Court will create
a compulsion upon the judiciary, to always include the judges of referring bench in the larger
bench. This mandatory effect is absolutely unnecessary. Furthermore, this prerequisite will
curtail the prerogative right of the Chief Justice to decide the Bench. Preference of some judges
over others in forming the bench would amount to questioning the competence of other judges
and would be a strict violation of the principle: all judges are equals. Different benches are
constituted with different object, depending upon the need of each case which requires the
Chief Justice to act according to the situation at hand. This function can be best performed by
the Chief Justice in full exercise of his prerogative right, without the burden of an unfounded
mandate.
ISSUE: 2 THE MASTER OF ROSTER MUST NOT BE DEEMED TO INCLUDE FIVE SENIOR-

MOST JUDGES OF THE SUPREME COURT.

The master of roster must not be deemed to include five senior-most judges of the Supreme
Court because this right has been assigned to the Chief Justice by the Constitution. The phrase
‘master of roster’ cannot be used to address multiple judges. It is used to address the Chief
Justice in his individual capacity. Mayeechin inscribes the Chief Justice as an institution in
himself for whom the phrase has been used time and again by the Supreme Court. No one
including a litigant has been conferred with the right to demand a deviation from the present
system. It is also an unnecessary and impracticable change because master of roster does not
extend to regulate the functioning of a bench. Also, the suggested changes would act as an
aberration in the conventions of administrative governance.
ISSUE:3 SUPREME COURT DOES NOT HAVE THE POWER TO LAY DOWN GUIDELINES TO
REGULATE THE FEES OF THE LAWYERS.

This Court does not have the power to lay down any guidelines in this regard. Regulation of
lawyer’s fees does not fall under the rule making power of the Supreme Court, and the
Parliament has exclusive power to make laws in this regard.

13TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL MCC, 2020 PAGE | XI

MEMORANDUM for RESPONDENT [SUMMARY OF ARGUMENTS]

ISSUE: 4 THE FEES OF LAWYERS MUST NOT BE REGULATED.

The fees of lawyers must not be regulated because requisite guidelines are already available.
The petitioner’s claim of capping of fees charged by all lawyers will violate right to equality.
Lawyers cannot be put under one class, because the profession of law is diverse and income
generated by a lawyer would depend on various factors like specialisation, field of practice,
etc. A general capping would amount to treating differently placed people equally, resulting in
violation of Article 14. Futhermore, it will violate the right to practice legal profession under
Article 19(1)(g) by putting an unreasonable restriction of general capping which the petitioner
demands.
ISSUE:5 ARTICLE 21 B IS NOT UNCONSTITUTIONAL.
The constitutional amendment inserting Article 21B is not liable to be struck down being
unconstitutional. It passes the cardinal test of constitutional validity according to which
Preamble to the Constitution is the guiding light and the Directive Principles of State Policy
are a book of interpretation while testing the constitutional validity of a statute. The provisions
of Article 21B are in consonance with both a socialist state’s Preamble and the welfare policy
prescribed in Part IV of the Constitution. Article 21B has been brought about by the Parliament
under legitimate use of its power to amend fundamental rights because the amendment does
not violate the basic structure. Instead, it strengthens the same by furthering harmony between
Part III and Part IV of the Constitution. Article 21B is an extension of Article 21 and promotes
equal protection enshrined in Article 14. It is harmonious with Article 19.
ISSUE:6 THE CITIZENSHIP AMENDMENT ACT, 2019 IS NOT LIABLE TO BE STRUCK

DOWN BEING UNCONSTITUTIONAL.

The Citizenship Amendment Act, 2019 is not liable to be struck down being unconstitutional
because it is not in contravention with Fundamental Rights. Article 14 permits reasonable
classification with an intelligible differentia and rational nexus to the object. The classification
in the Act is based on valid determining factor, i.e., minorities persecuted in theocratic States,
on the basis of religion. The Act is to achieve the legitimate object of enabling protection to
identified groups. The Act is not against secularism because it does not prefer individuals based
on their religion. The Act is an enabling provision for citizenship that the Parliament has
enacted based on its public policy, and a narrow classification in itself is not unconstitutional.

13TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL MCC, 2020 PAGE | XII
MEMORANDUM for RESPONDENT [ARGUMENTS]

ARGUMENTS

I. A JUDGE WHO HAS EXPRESSED OPINION AS PART OF THE REFERRING

BENCH, OUGHT NOT PARTICIPATE IN THE LARGER BENCH HEARING
THE REFERRED CASE

¶ [1]. It is humbly submitted before the Hon’ble Supreme Court of Mayeechin that a judge
who is part of the referring bench, ought not participate in the larger bench as first, suggestion
of inclusion in the larger bench has no constitutional foundation [A]; secondly, inclusion will
create compulsion upon the judiciary [B]; and lastly, objective of constituting both the benches
is different [C].

A. SUGGESTION OF INCLUSION IN THE LARGER BENCH HAS NO CONSTITUTIONAL

FOUNDATION

¶ [2]. Supreme Court Rules, 20131 and Handbook on Practice and Procedure and Office
Procedure, 2017,2 provides that in case the bench considers that the matter should be dealt with
by a larger bench, it shall refer the matter to the Chief Justice, who shall thereupon constitute
such a bench for the hearing of it.3
¶ [3]. The provision nowhere says that the members of the bench making reference are to be
the members of the larger bench as well. 4 There is no constitutional foundation on the basis of
which such a suggestion can be accepted. 5
¶ [4]. In the impugned case, a judge of the referring bench was not included in the larger
bench.6 As a result, some of the judges held a press conference 7 to revolt against non-inclusion
completely ignoring the non-existence of any constitutional foundation that suggests inclusion
of a judge of referring bench.
¶ [5]. Therefore, it is submitted that there is no constitutional foundation on the basis of which
suggestion of inclusion in the larger bench can be accepted.

1
Supreme Court Rules, 2013, Gazette of India, pt. II sec. 3(i) (May 29,2014).
2
Handbook on practice and procedure and office procedure, 2017.
3
Id.
4
Shanti Bhushan v. Supreme Court of India, (2018) 8 SCC 396, 416 (India) [hereinafter Shanti Bhushan].
5
Campaign for Judicial Accountability and Reforms v. Union of India, (2018) 1 SCC 196, 200 (India) [hereinafter
CJAR].
6
Moot proposition ¶ 13.
7
Moot proposition ¶ 13.

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MEMORANDUM for RESPONDENT [ARGUMENTS]

B. INCLUSION WILL CREATE COMPULSION UPON THE JUDICIARY

¶ [6]. It is humbly submitted that inclusion will create compulsion upon the judiciary to
include the concerned judges as first, the outcome of the instant case has a mandatory effect
upon the judiciary [1] and lastly, mandatory inclusion of the judge is unnecessary [2]

1. THE OUTCOME OF THE INSTANT CASE HAS A MANDATORY EFFECT UPON THE JUDICIARY

¶ [7]. Precedents form foundation of administration of justice. 8 The doctrine of stare decisis
instructs that a judgement of a larger bench shall have a binding effect upon the smaller benches
and the only way to challenge it requires a reference to a larger Bench. 9
¶ [8]. Additionally, according to the dictionary meaning ‘ought to’ is used to show when it
would be a good thing to perform the activity referred to.10 The word ought, though generally
directory only, will be taken as mandatory if the context requires it. 11
¶ [9]. In the impugned case, the issue before the bench enquires if the judge ‘ought to’ 12
participate in the larger bench. Although the issue in hand asks if the inclusion of judge13 in the
larger bench will be a good thing to do but the same shall also have a mandatory effect upon
the judiciary as the present case is being presided by an eleven-judge bench. The judgement of
the present case will have precedential value that cannot be challenged until a bench even larger
than eleven judges’ bench is constituted.
¶ [10]. Therefore, it is submitted that the outcome of the instant case has a mandatory effect
upon the judiciary.

2. MANDATORY INCLUSION OF THE JUDGE IS UNNECESSARY

¶ [11]. It is humbly submitted that mandatory inclusion is the judge is unnecessary as first,
mandatory inclusion will curtail the prerogative right of the Chief Justice to decide the bench
(a); and lastly, mandatory inclusion questions the competence of other judges (b).

8
TribhovandasP.Thakker v. Rattilal Motilal Patel, AIR 1968 SC 372, 377 (India); National Insurance Co.
Ltd. v. Pranay Sethi, (2017) 16 SCC 680, 681 (India).
9
Justice K.S. Puttaswamy v. Union of India and Ors., (2017) 10 SCC 1, 176 (India); State of U. P. v. AjayKumar
Sharma, (2016) 15 SCC 289 (India).
10
Ought to,CAMBRIDGE DICTIONARY (4th ed. 2013).
11
Ought,BLACK’S LAW DICTIONARY (10th ed. 2009).
12
Moot Proposition Preliminaries issue (a) page 4.
13
Moot Proposition ¶ 13.

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MEMORANDUM for RESPONDENT [ARGUMENTS]

a) Mandatory inclusion will curtail the prerogative right of the chief justice to decide the
bench

¶ [12]. Every matter shall be heard by a Bench nominated by the Chief Justice. 14 There cannot
be any direction to the Chief Justice of India as to who shall be sitting on the Bench or who
shall take up the matter as that touches the composition of the Bench, it is not countenanced in
law and not permissible. 15
¶ [13]. In the impugned case, the Chief Justice of Meeyachin decides the roster. 16 In case the
inclusion is mandated, it will be directory upon the Chief Justice to necessarily include him.
Therefore, it is submitted that mandatory inclusion of the judge will curtail the prerogative right
of the chief justice to allocate the case.

b) Mandatory inclusion questions the competence of other Judges

¶ [14]. Every Judge is invested with the equal duty of adjudicating cases which come to the
Court and are assigned by the Chief Justice. 17 To suggest that any Judge would be more capable
of deciding particular cases has no foundation in principle or precedent. To hold otherwise
would be to cast a reflection on the competence and ability of other Judges to deal with all
cases notwithstanding the fact that they have fulfilled the qualifications mandated by the
Constitution for appointment to the office. 18
¶ [15]. It is humbly submitted that the judges of the Supreme Court of Meeyachin are to be
deemed to be pares 19i.e. equals and every judge has the equal duty to adjudicate a matter which
comes before him. If an exclusive right to preside over a bench is given to any judge it portrays
as he is more capable than the other judges.
¶ [16]. Therefore, it is submitted that such mandatory inclusion of judge questions the
competence of other judges.

C. OBJECT OF CONSTITUTING BOTH THE BENCHES IS DIFFERENT

14
Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005) 2 SCC 673, 680 (India).
15
State of Rajasthan v. Prakash Chand, (1998) 1 SCC 1, 39 (India) [hereinafter Prakash Chand].
16
Moot proposition ¶ 3.
17
AsokPande v. Supreme Court of India, (2018) 5 SCC 341, 349 (India) [hereinafter Ashok Pande].
18
Id.
19
Moot proposition ¶ 3.

13TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL MCC, 2020 PAGE | 3

MEMORANDUM for RESPONDENT [ARGUMENTS]

¶ [17]. A larger bench is constituted under Article 145(3)20of the Indian Constitution in order
to decide a case involving substantial question of law as to the interpretation of the
constitution.21 On the other hand a division bench is constituted under Art. 145(2) of the Indian
Constitution in order to decide other matters.22
¶ [18]. Additionally, in order to constitute these benches Chief Justice of the Supreme Court
has to bear in mind the area of specialisation of each judge, so that the allocation of work is
done effectively.23
¶ [19]. In the impugned case, the division bench is constituted with the object to hear all the
matters but the larger bench 24 is constituted with the sole object to decide a case involving
substantial question of law as to the interpretation of the constitution. 25 While constituting the
constitutional bench, the Chief Justice of Mayeechin has to bear in mind specialisation of
judges so that the bench comprises of most suitable judges with regard to the object of bench.
Therefore, it is submitted that the object of both the benches is different.

II. THE MASTER OF ROSTER MUST NOT BE DEEMED TO INCLUDE FIVE

SENIOR-MOST JUDGES OF THE SUPREME COURT

¶ [20]. It is humbly submitted before the Hon’ble Supreme Court of Mayeechin that the master
of roster must not be deemed to include five senior-most judges of the Supreme Court as first,
the Chief Justice’s prerogative right of master of roster is derived from the constitution [A];
secondly, the phrase ‘Master of Roster’ is used to address Chief Justice of Mayeechin in his
individual capacity [B]; thirdly, nobody has been conferred the right to demand the
contraposition of Chief Justice’s prerogative over the rights [3]; fourthly,, deviation from
present scheme towards the suggested scheme is unnecessary [4]; andlastly, suggested changes
act as an aberration in the conventions of administrative governance [5].

A. CHIEF JUSTICE’S PREROGATIVE RIGHT OF THE MASTER OF ROSTER IS DERIVED FROM

THE CONSTITUTION

20
INDIA CONST. art. 145, § 3.
21
ShrimanthBalasaheb Patil and Ors. v. Hon'ble Speaker, Karnataka Legislative Assembly and Ors.2019 SCC
OnLine SC 1454, 133 (India); Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra, AIR 1965 SC 682, ¶ 11
(India).
22
INDIA CONST. art. 145, § 2.
23
CJAR Supra note 5.
24
Moot proposition ¶ 10.
25
Moot proposition ¶ 11.

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MEMORANDUM for RESPONDENT [ARGUMENTS]

¶ [21]. Article 145 confers rule-making power on the Supreme Court. 26 In exercise of the
power given thereunder,27 Supreme Court Rules, 2013 and Handbook on practice and
procedure and office procedure, 2017 were regulated.
¶ [22]. Chapter V Rule 128 states preparation of roster under the directions of the Chief Justice.
Order VI Rule 129 of Supreme Court Rules states that subject to the other provisions of these
rules every cause, appeal or matter shall be heard by a Bench consisting of not less than two
Judges nominated by the Chief Justice.
¶ [23]. In the impugned case, the ‘judges’ roster’30 is decided by Chief Justice of Mayeechin.
This prerogative right has been conferred to the Chief Justice under the Handbook on practice
and procedure and office procedure which has been prepared under the rule making power
given to the Supreme Court under Article 145 of The Mayeechin Constitution.
¶ [24]. Therefore, it is submitted that the Chief Justice’s prerogative right of master of roster
has its foundation in the constitution.

B. THE PHRASE ‘MASTER OF ROSTER’ CANNOT BE USED TO ADDRESS MULTIPLE JUDGES

¶ [25]. It is humbly submitted that the phrase master of the roster cannot be used to address
multiple judges as first, the Constitution Mayeechin inscribes Chief justice as an institution in
himself (1); and lastly,Apex Court has used the phrase ‘Master of roster’ to address chief Justice
in his individual capacity time and again (2).

1. THE CONSTITUTION OF MAYEECHIN INSCRIBES CHIEF JUSTICE AS AN INSTITUTION IN

HIMSELF

¶ [26]. Art. 124(1) of the Indian Constitution makes it clear that the Chief Justice of India is
not identified with the Supreme Court of India.31 As a repository of constitutional trust, the
Chief Justice is an institution in himself.32
¶ [27]. In the impugned case, the Chief Justice of Mayeechin is nominated by the incumbent
Chief Justice33 and he has been recognised by the Constitution of Mayeechin as an institution

26
3 H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 2695 (4th ed. 2008).
27
Supreme Court Rules, 2013, Gazette of India, pt. II sec. 3(i) (May 29,2014).
28
Handbook on practice and procedure and office procedure, 2017.
29
Supreme Court Rules, 2013, Gazette of India, pt. II sec. 3(i) (May 29,2014).
30
Moot proposition ¶ 3.
31
5 D. D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 5579 (8th ed. 2009).
32
Ashok PandeSupra note 17, at 351.
33
Moot proposition ¶ 3.

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MEMORANDUM for RESPONDENT [ARGUMENTS]

in himself. His powers and duties cannot be befuddled with the other institutions of the supreme
court as he is not identified with it.
¶ [28]. Therefore, it is submitted that The Constitution of Mayeechin inscribes Chief Justice as
an institution in himself.

2. THE PHRASE ‘MASTER OF ROSTER’ IS USED TO ADDRESS CHIEF JUSTICE IN HIS INDIVIDUAL

CAPACITY

¶ [29]. ‘Chief Justice’ in his individual capacity is the Master of Roster and it cannot read as
Collegium of first three or five Judges.34
¶ [30]. In State of Maharashtra v. Narayan ShamraoPuranik and Ors.35 it was observed by the
bench that “the Chief Justice is the master of the roster”.In the verdict of Campaign for Judicial
Accountability and Reforms v. Union of India &Anr.36 it was stated that “The same principle
must apply proprio vigore as regards the power of the Chief Justice of India.”
¶ [31]. It the impugned case, the Chief Justice of the Mayeechin decides the roster 37 conferring
to him the power of ‘Master of the Roster’, implying the restriction of multiple individuals
holding the power.
¶ [32]. Therefore, it is submitted that the phrase ‘Master of Roster’ is used to address chief
justice in his individual capacity.

C. THE CONTRAPOSITION CANNOT BE DEMANDED

¶ [33]. The Chief Justice is entitled to discharge the functions and duties of the office including
constitution of benches and assignment of judicial work to judges as per procedure.38 This
responsibility flows from the office and no one including a litigant has right to demand for
contra-position.39 There cannot be any kind of command or order directing the Chief Justice of
India to constitute a particular Bench. 40

34
Shanti Bhushan Supranote 4.
35
State of Maharashtra v. Narayan ShamraoPuranik and Ors., (1982) 2 SCC 440, 444 (India).
36
CJAR Supra note 23.
37
Moot Proposition para 3.
38
Dr.D.C.Saxena v. Chief Justice of India, AIR 1996 SC 2481, ¶ 13 (India).
39
Kamini Jaiswal v. Union of India, (2018) 1 SCC (Cri) 297, 178 (India).
40
Prakash Chand Supra note 15.

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MEMORANDUM for RESPONDENT [ARGUMENTS]

¶ [34]. In the impugned case, the Chief Justice of Mayeechin decides the roster. 41 Inclusion of
five senior most judges 42 as demanded by the judges in the press conference 43 is a
contraposition.
¶ [35]. Therefore, it is submitted that the contraposition of including five senior most judges
cannot be demanded.

D. DEVIATION FROM PRESENT SCHEME TOWARDS THE SUGGESTED SCHEME IS

UNNECESSARY

¶ [36]. It is humbly submitted that deviation from present scheme towards the suggested
scheme is unnecessary as first, inclusion of five senior-most judges in the mater of roster will
be impracticable (1); and lastly, master of roster does not extend to regulate the functioning of
a bench (2).

1. INCLUSION OF FIVE SENIOR-MOST JUDGES IN THE MASTER OF ROSTER WILL BE

IMPRACTICABLE

¶ [37]. The chapter VI of the rulebook of practice and procedure of the supreme court states
that the “roster instructions and amendments shall be prepared in such a manner so as to ensure
that no judicial time is wasted.” 44 Additionally, the Supreme Court in Shanti Bhushan
case45held that-
“the task of constitution of Benches can more smoothly be performed by the chief justice and
discharge of such a function by the Collegium would be unworkable and also lead to many
practical difficulties it would be difficult to have smooth day to day functioning of the Supreme
Court. Collegium for the purpose of assigning the cases to a particular Bench on daily basis is
clearly impracticable.”
¶ [38]. In the impugned case, the rulebook on practice and procedure instructs the Supreme
Court of Meeyachin to prepare roster in such a manner such that judicial time is not wasted.
For the same reason the Chief Justice has been given the power of deciding the roster. 46 The
inclusion of five judges will cause practical hardships.
¶ [39]. Therefore, it is submitted that changing the present system will be impracticable.

41
Moot Proposition ¶ 3.
42
Moot Proposition ¶ 13.
43
Moot Proposition ¶ 13.
44
Handbook on practice and procedure and office procedure, 2017.
45
Shanti Bhushan Supra note 4, at 419. (India).
46
Moot Proposition ¶ 3.

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MEMORANDUM for RESPONDENT [ARGUMENTS]

2. MASTER OF ROSTER DOES NOT EXTEND TO REGULATE THE FUNCTIONING OF A BENCH

¶ [40]. All actions of a Judge must be judicious in character. 47 When a particular matter is
assigned to a particular bench, that bench acquires the complete dominion over the case.48 The
‘Chief Justice’ does not extend to regulate the functioning of a particular bench to decide cases
assigned to him once the cases are allocated to that Bench. 49
¶ [41]. In the impugned case, the Chief Justice of Mayeechin is primus inter pares50 i.e. every
judge is equal and Chief Justice is just first among them. All judges being equal have equal
duty to judiciously hear any case. After the Chief Justice of Mayeechin assigns the case, the
presiding bench takes complete dominion over the case. The same cannot be claimed to be
against ‘constitutional ethos’. 51
¶ [42]. Therefore, it is submitted that master of roster does not extend to regulate the
functioning of a bench.

E. CHANGE IN THE PRESENT PROCEDURE WILL ACT AS AN ABERRATION IN THE

CONVENTIONS OF ADMINISTRATIVE GOVERNANCE OF THE JUDICIARY

¶ [43]. All the institutions governed by the constitution ought to discharge their allocated
functions either by the virtue of the law or convention.52 Additionally, Judiciary is substantially
insulated from undue influence by virtue of the constitutional conventions, political practice
and professional tradition.53
¶ [44]. In the impugned case, the Chief Justice decides the roster. 54 This is one of his
prerogative right including other rights of mentioning55, formulation of larger bench56 etc.
Other than the rules, these administrative powers are mostly governed by conventions including
the vital most procedure of appointment of the Chief Justice that is done through seniority
convention.57 Suggested changes deviate from the vital 58 administrative powers that are held
by the chief justice.

47
Shanti Bhushan Supra note 4.
48
Prakash Chand Supra note 15, at 38-39.
49
Shanti Bhushan Supra note 4, at 419.
50
Moot Proposition ¶ 3.
51
Moot Proposition ¶ 13.
52
Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441, 651 (India).
53
S. P. Gupta v. Union of India, (1981) Supp SCC 87, 793 (India).
54
Moot Proposition ¶ 3.
55
Moot Proposition ¶ 6.
56
Moot Proposition ¶ 13.
57
Moot Proposition ¶ 3.
58
Moot Proposition ¶ 3.

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MEMORANDUM for RESPONDENT [ARGUMENTS]

¶ [45]. Therefore, it is submitted that changes in the present procedure will act as an aberration
in the conventions of administrative governance.

III. SUPREME COURT DOES NOT HAVE THE POWER TO LAY DOWN GUIDELINES TO
REGULATE THE FEES OF THE LAWYERS

¶ [46]. It is humbly submitted that the supreme court does not have the power to lay down any
guidelines in this regard as first, the parliament has the exclusive power to make laws in this
regard.[A] and lastly, regulation of fees does not fall under the rule making power of the
supreme court [B].

A. PARLIAMENT HAS EXCLUSIVE POWER TO MAKE LAWS IN THIS REGARD

¶ [47]. Article 24659 of Indian constitution states that “notwithstanding anything in clauses (2)
and (3), Parliament has exclusive power to make laws with respect to any of the matters
enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union
List").”
¶ [48]. Item 7760 of List I of the Seventh Schedule states that“Constitution, organisation,
jurisdiction and powers of the Supreme Court (including contempt of such Court), and the fees
taken therein; persons entitled to practise before the Supreme Court.”
¶ [49]. The legislature is entitled to make laws with regards to the same. 61The right to practice
before the court is subject to the terms and conditions laid down in the statute which enables
him to, practice, e.g., the Bar Council Act. 62
¶ [50]. In the impugned case, regulation of fees of lawyers63 falls under the union list. Subjects
mentioned under the union list have been exclusively reserved to the law making power of the
Union Government and cannot be rendered by any other constitutional institution including the
Supreme Court of Mayeechin. 64
¶ [51]. Therefore, it is submitted that only parliament has exclusive power to make laws in this
regard.

B. REGULATION OF FEES DOES NOT FALL UNDER THE RULE MAKING POWER OF THE

59
INDIA CONST. art. 246.
60
INDIA CONST. sch. 7th.
61
3 D. D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 4337 (9th ed. 2014).
62
Id.
63
Moot proposition ¶ 5.
64
Submission Issue-II, A.

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MEMORANDUM for RESPONDENT [ARGUMENTS]

SUPREME COURT

¶ [52]. Clause (a)65 of Art. 145 includes persons practising before the court under rule making
power of the court. “practising before the court” in this context can have only one meaning i.e.,
the right of physical appearance in Court. 66 The right to practise and the right to appear in courts
are not synonymous.67
¶ [53]. The issue of regulation of fees charged by lawyers was raised in B. Sunitha
case68wherein it was held that “the authorities concerned in the Government should take
cognizance of the issue of introducing requisite legislative changes for an effective regulatory
mechanism to check violation of professional ethics and also to ensure access to legal
services.”
¶ [54]. In the impugned case, the plea to regulate the fees of the lawyers69 which falls under
the right to practice law has been made before the Supreme Court of Mayeechin. 70. But the
Supreme Court of Mayeechin has the power to regulate right to appear only. The matter of fees
charged by lawyers71 does not fall within right to appear.
¶ [55]. Therefore, it is submitted that regulation of fees of lawyers does not fall under the rule
making power of the Supreme Court.

IV. THE FEES OF LAWYERS MUST NOT BE REGULATED

¶ [56]. It is humbly submitted that the fees of the lawyers must not be regulated as first,
requisite guideline is already available [A]; Secondly, general capping will violate right to
equality [B], and lastly, regulation of fees will violate right to practice legal profession [C].

A. REQUISITE GUIDELINE IS ALREADY AVAILABLE

¶ [57]. The Rules which perfunctorily deal with fee charged by advocates are the Bar Council
of India Rules;Therein, it states that a Senior Advocate may in recognition of the services
rendered by appearing in any matter pay him a fee which he considers reasonable. 72

65
INDIA CONST. art. 145, § 1, cl. a.
66
Mahipal Singh Rana v. State of U. P., (2016) 8 SCC 335, 369 (India).
67
Id. at 357.
68
B. Sunitha v. State of Telangana, (2018) 1 SCC 638, 640 (India); Modern Dental College and Research Centre
v. State of M. P., (2016) 7 SCC 353, 371 (India).
69
Moot Proposition ¶ 5.
70
Moot Proposition ¶ 5.
71
Moot Proposition ¶ 5.
72
Bar Council of India Rules, 1975, Gazette of India, pt. III sec. 4 (Sept. 6 1975).

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MEMORANDUM for RESPONDENT [ARGUMENTS]

¶ [58]. Additionally, an advocate is bound to accept any brief in the Courts in or before which
he proposes to practise at a fee consistent with his standing at the Bar and the nature of the
case.73 He shall not stipulate for a fee contingent on the results of litigation or agree to share
the proceeds thereof. 74Every advocate shall in the practice of the profession of law bear in mind
that any one genuinely in need of a lawyer is entitled to legal assistance even though he cannot
pay for it fully or adequately and that within the limits of an Advocate’s economic condition,
free legal assistance to the indigent and oppressed is one of the highest obligations an advocate
owes to society.75
¶ [59]. In the impugned case, the petitioner has prayed before the Supreme Court of Mayeechin
to regulate the fees of the lawyers. 76 This is in complete ignorance of Bar Council of India rules
which have already formulated general guidelines that deal with the matter of fees charged by
advocates and senior advocates. These guidelines enable the advocate to charge fees rationally
and in consideration of the principles of legal aid.
Therefore, it is submitted that requisite guideline on fees charged by lawyers is already
available.

B. GENERAL CAPPING WILL VIOLATE RIGHT TO EQUALITY

¶ [60]. An Advocate may carry on chamber practice or even practise in court is various other
ways, e.g., drafting and filing of pleadings and Vakalatnama for performing those acts. 77 The
income generated by a lawyer would depend on the field of his practice and it is possible that
a lawyer doing pro bono work or who specializes in a particular field may earn less than
others.78 Additionally, if all persons are treated equally, despite being differently classes, it
results in mechanical equality and mechanical equality results in in justice. 79
¶ [61]. In the impugned case, the petitioner claimed capping of fees charged by all lawyers 80
resulting in treating of all the lawyers as one class. This results in mechanical equality.
Therefore, it is submitted that general capping will violate right to equality.

73
Id.
74
Bar Council of India Rules, 1975, Gazette of India, pt. III sec. 4 (Sept. 6 1975).
75
Bar Council of India Rules, 1975, Gazette of India, pt. III sec. 4 (Sept. 6 1975).
76
Moot Proposition ¶5.
77
State of U. P. v. S. K. Tyagi &ors., (2004) SCC All 1095, 802 (India); Prayag Das v. Civil Judge, Buland-shahry
AIR 1974 All 133, ¶ 9 (India).
78
Indira Jaising v. Supreme Court of India, (2017) 2 SCC 362, para 34 (India).
79
Charanjit Lal Chowdhury v. Union of India, AIR 1951 SC 41, ¶ 11 (India).
80
Moot Proposition ¶ 5.

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MEMORANDUM for RESPONDENT [ARGUMENTS]

C. REGULATION OF FEES WILL VIOLATE RIGHT TO PRACTICE LEGAL PROFESSION

¶ [62]. Right to practice legal profession is not only a statutory right under Advocates Act, but
also a fundamental right under article 19 (1) (g) subject to reasonable restriction. 81
¶ [63]. Right to practice profession is subject to reasonable restrictions imposed by the state in
the interest of general public. 82 As far as the expression ‘interest of the general public’ is
concerned, it is a comprehensive expression comprising of any matters which affects the public
welfare or economic stability of the country. 83
¶ [64]. Additionally, the lawyers who are not associated with the Legal Service Authority,
provide legal assistance to the downtrodden through pro bono legal service. 84 However, owing
to low remuneration, lawyers are uninterested in providing pro bono legal assistance. 85
¶ [65]. In the impugned case, the petitioner has asked for regulation of fees charged by lawyers.
A fee charged in practice of legal profession is a postulate of the right to practice legal
profession.
¶ [66]. Additionally, the remedy that has been asked for providing legal aid to the downtrodden
is regulation of fees.86 Regulation of fees will have a negative impact upon the income earned
by these lawyers and as a result it will minimize pro bono activities of the lawyers as it is the
only way lawyers provide legal aid to the downtrodden.
¶ [67]. Therefore, it is submitted that regulation of fees will violate right to practice legal
profession.

V. ARTICLE 21 B IS NOT UNCONSTITUTIONAL

¶ [68]. It is humbly submitted that Article 21 B is not unconstitutional as first, Article 21B
passes the cardinal test of constitutional validity (A); secondly, Article 21B harmonizes Part III
and Part IV (B); and lastly, Article 21B does not violate the basic structure doctrine (3).

A. ARTICLE 21B PASSES THE CARDINAL TEST OF CONSTITUTIONAL VALIDITY

81
4 D. D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 4337 (9th ed. 2014).
82
Ramchand v. Union of India, AIR 1963 SC 563, ¶ 7 (India).
83
2 D. D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 4362 (9th ed. 2014).
84
Chinmoy Pradip Sharma, Pro Bono Work: A case for its integration into Legal Services in India, SCC ONLINE
BLOG (Jan. 20, 2019, 12:08 PM), https://www.scconline.com/blog/post/2018/08/04/pro-bono-work-a-case-for-
its-integration-into-legal-services-in-india/.
85
Id.
86
Moot Proposition ¶ 5.

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MEMORANDUM for RESPONDENT [ARGUMENTS]

¶ [69]. When the constitutional validity of a statute is considered, the cardinal rule to be
followed is to look at the Preamble to the Constitution as the guiding light and the Directive
Principles of State Policy as a book of interpretation. 87
¶ [70]. According to the preamble, India is a socialist republic. 88 In Minerva Mills case,89 it
was held that-
“Socialist republic implies the existence of certain important obligations which the State has
to discharge. The right to work, the right to free choice of employment, the right to just and
favourable conditions of work, the right to protection against unemployment, the right of
everyone who works to just and favourable remuneration ensuring a decent 1iving for himself
and his family, the right of everyone without discrimination of any kind to equal pay for equal
work, the right to rest, leisure, reasonable limitation on working hours and periodic holidays
with pay, the right to form trade unions and the right to join trade unions of one's choice and
the right to security of work are some of the rights which have to be ensured by appropriate
legislative and executive measures.”
¶ [71]. According to the part IV of the constitution, India is a welfare State. 90 It is the duty of
every welfare State to generate employment. 91A welfare state is one, which seeks to ensure
maximum happiness of maximum number of people living within its territory. 92In the modern
"Welfare Philosophy", it is for the State to ensure these essentials of life to all its citizens, and
if possible to non-citizens.93
¶ [72]. In the impugned case, all the provisions that have been formulated in Article 21B94 are
the obligations of the state that were conferred to the state by the people when Mayeechin was
declared a socialist republic in the preamble. The provisions of Article 21B 95 are also essential
features of welfare policy as provided in the part IV of the constitution. All the provisions abide
by the principles enshrined in preamble and part IV.
¶ [73]. Therefore, it is submitted that Article 21B passes the cardinal test of constitutional
validity.

87
Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1, 484 (India) [hereinafter Ashoka Kumar].
88
INDIA CONST. Preamble.
89
Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, 1806-1807 (India) [hereinafter Minerva Mills].
90
Lala Ram v. Union of India (Civil Appeal No. 243-247 of 2003), ¶ 9 (India).
91
Nagendra Rao & Company v. State of Andhra Pradesh,AIR 1994 SC 2663, ¶ 34 (India).
92
Minerva MillsSupra note 91.
93
SiddharamSatlingappaMhetre Vs. State of Maharashtra and Ors., 2011(1) SCC 694, 706 (India).
94
Moot Proposition ¶ 8.
95
Moot Proposition ¶ 8.

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MEMORANDUM for RESPONDENT [ARGUMENTS]

B. ARTICLE 21B HARMONIZES PART III AND PART IV

¶ [74]. Harmony and balance between fundamental rights and directive principles is an
96
essential feature of the basic structure of the constitution. It can be well said that directive
principles prescribed the goal to be attained and fundamental rights laid down the means by
which that goal was to be achieved. 97 It shall be the duty of the state to apply these principles
in making laws.98In any way, Constitutional Amendments giving effect to Directive Principles
of the State Policy would not offend the basic structure of the Constitution.99
¶ [75]. In the impugned case, Article 21B provided right to work100 which was in order to attain
the goal as embodied in Part IV.101 Article 21B also puts obligation upon the state as it states
that everyone shall have protection against unemployment 102 and the state shall take
appropriate steps to safeguard this right. 103 It is an enactment of DPSP which fulfils the
obligation of the state.
¶ [76]. Therefore, it is submitted that Article 21B harmonizes Part III and Part IV of the
Mayeechin constitution.

C. ARTICLE 21B DOES NOT VIOLATE THE BASIC STRUCTURE DOCTRINE

¶ [77]. Parliament has power to amend fundamental right subject to the basic structure
doctrine.104 The claim of any particular feature of the Constitution to be a "basic" feature is
checked by the Court in each case that comes before it.105 Additionally, Articles 14, 19 and 21
clearly form part of the basic structure of the Constitution and cannot be abrogated. 106
¶ [78]. It is humbly submitted that Article 21B does not violate the basic structure as first,
Article 21B is a limb of Article 21 (1); secondly, Article 21B is based upon the principle of
equal protection as enshrined in article 14 (2); and lastly, alteration of right of citizen under
Article 19 only moderate abridgement (3).

96
Minerva Mills Supra 91.
97
Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461, 1641 (India) [hereinafter Kesavananda Bharti].
98
Daulat Singh Surana v. First Law Acquisition Collector (2007) 1 SCC 641, 644 (India).
99
Supra note 88.
100
Moot proposition ¶ 8.
101
Submission Issue -V, A.
102
Moot Proposition ¶ 8.
103
Moot proposition ¶ 8.
104
Ashoka Kumar Supra note 84.
105
Minerva Mills Supra note 91.
106
KesavanandaBharti Supra note 97.

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MEMORANDUM for RESPONDENT [ARGUMENTS]

1. ARTICLE 21B IS A LIMB OF ARTICLE 21

¶ [79]. Right to life and personal liberty as provided in Article 21 107 is a valuable right and
right to work is the most valuable aspect of liberty because, it sustains and enables a man to
live.108Right to work is founded in the Part IV109 of the constitution and has to be gradually
transformed into fundamental rights depending upon the economic capacity of the State. 110
¶ [80]. In the impugned case, people of Mayeechin wanted an honest government to deal with
the problem of unemployment. 111 In response to this Article 21B was enacted in order to
provide everyone with right to the opportunity to gain living by work.112 This is a gradual
transformation from Part IV to III.
¶ [81]. Therefore, it is submitted that Article 21B is a limb of Article 21.

2. ARTICLE 21B IS BASED UPON THE PRINCIPLE OF EQUAL PROTECTION AS ENSHRINED IN

ARTICLE 14

¶ [82]. Equal protection with regards to aliens is that in matters in which aliens are under no
constitutional disability, the state may not discriminate against a person simply on the ground
that he is an alien. 113 Additionally, right to work is a part of article 21 114 and every person is
entitled to it, including aliens.115 The right to live and the right to work are integrated and inter-
dependent.116
¶ [83]. In the impugned case, Article 21B provided right to work for everyone117 and no
discrimination had been done between citizens and non-citizens as the constitution has not
disabled non-citizens from the scheme of right to work under right to life.
¶ [84]. Therefore, it is submitted that Article 21B is based upon the principle of equal
protection as enshrined in Article 14.

107
INDIA CONST. art. 21.
108
Madhu Kishwar& Ors v. State of Bihar, (1996) 5 SCC 125, 139-140 (India).
109
INDIA CONST. art. 41.
110
Olga Tellis v. Bombay Municipal Corpn., (1985) 3 SCC 545, 572-573 (India).
111
Moot Proposition ¶ 1.
112
Moot Proposition ¶ 8.
113
INDIA CONST. art. 14; 2 D. D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 1715 (8th ed. 2007).
114
Supra note 111 at 565.
115
Chairman, Railway Board v. Chandirama Das, (2000) 2 SCC 465, 483 (India).
116
Supra note 111 at 565.
117
Moot Proposition ¶ 8.

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MEMORANDUM for RESPONDENT [ARGUMENTS]

3. ALTERATION OF RIGHT OF CITIZEN UNDER ARTICLE 19 ONLY AMOUNTS TO MODERATE

ABRIDGEMENT

¶ [85]. The right conferred by article 19 are confined to citizens. 118 Notwithstanding this, If
any Constitutional amendment is made which moderately abridges or alters the equality
principle or the principles under Article 19, 119 in order to give priority value to the moral claims
embodied in part IV of the constitution, it cannot be said that it violates the basic structure of
the Constitution.120
¶ [86]. In the impugned case, Article 21B provides right to work for everyone, contrary to the
right to practice any profession being confined to citizens. This has been done in order to give
priority value to the moral claims embodied in Part IV.121
¶ [87]. Therefore, it is submitted that alteration of right of citizen under Article 19 only
amounts to moderate abridgement.

VI. THE CITIZENSHIP AMENDMENT ACT, 2019 IS NOT LIABLE TO BE

STRUCK DOWN BEING UNCONSTITUTIONAL?

¶ [88]. It is humbly submitted before the Hon’ble Supreme Court of Mayeechin that
Citizenship Amendment Act [hereinafter CAA] is not liable to be struck down being
unconstitutional asfirst, CAAdoes have a reasonable classification (A); Citizenship
Amendment Act is not in violation of the principle of secularism (B).

A. CAA DOES HAVE A REASONABLE CLASSIFICATION

¶ [89]. A statute is declared unconstitutional and void if it comes in conflict with a fundamental
Right.122 The Supreme Court has observed that while Article 14 forbids class legislation; it
does not forbid classification for the purpose of legislation, provided such classification is
reasonable and not arbitrary. 123

118
Hans Muller of Nurenburg v. Superintendent, Presidency Jail, (1955) 1 SCR 1284, ¶33 (India).
119
Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1, 484 (India).
120
M.P.JAIN, INDIAN CONSTITUTIONAL LAW 1415 (8th ed. 2018).
121
INDIA CONST. art. Part IV.
122
M.P.JAIN, INDIAN CONSTITUTIONAL LAW 883 (8th ed. 2018); ChembakaveVadakkekkara Lakshmi v
NellisseriGraman Narayanaswami, 1963 AIR (Ker) 330, ¶ 31 (India).
123
State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75, para 55 (India).

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MEMORANDUM for RESPONDENT [ARGUMENTS]

¶ [90]. In the impugned case, CAA passes the test of permissible classification as first, the
classification is founded on an intelligible differentia (1) and secondly, differential has a
rational relation to the object of the act (2).

1. THE CLASSIFICATION IS FOUNDED ON AN INTELLIGIBLE DIFFERENTIA

¶ [91]. It is humbly submitted that the classification has been founded on an intelligible
differentia as first, classification based on religion and place of birth applying to non-citizens
is permissible (a); secondly, the differential is intelligible (b); lastly, CAA’s minimal under
inclusiveness does not vitiate the classification (c).

a) Classification based on religion and place of birth applying to non-citizens is permissible

¶ [92]. The duty of not discriminating on the ground of religion is only towards
citizen.124Discriminating non-citizens based on this ground is not hit by article 15. 125
¶ [93]. In the impugned case, the legislature made classification between non-citizens. This
was done not on the sole basis of religion but based on religious minorities who are being
persecuted on the ground of religion in countries with state religion. 126 Different classes of
immigrants have been discriminated upon their place of birth and religion. This is out of the
ambit of the Article 15.
¶ [94]. Therefore, it is submitted that classification on the basis of religion and place of birth
applying to the non-citizens is permissible.

b) The differential is intelligible

¶ [95]. The differential is intelligible when the Classification permissible is based on some real
and substantial distinction bearing a just and reasonable relation to the object. 127Classification
on the basis of religion is a valid classification. 128
¶ [96]. In the impugned case, the legislature has enacted CAA in order to protect certain
minority religious communities from being persecuted. These religious communities have been
differently placed from the other communities which do not face persecution. This

124
INDIAN CONST. art. 15.
125
State of Sikkim v. Surendra Prasad Sharma, (1994) 5 SCC, ¶8 (India).
126
The Citizenship (Amendment) Act, 2019, No. 47, Act of Parliament, 2019 (India).
127
Suraj Mall Mohta and Co. v. A.V. Visvanatha Sastri, (1955) 1 SCR 448, ¶14 (India).
128
T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, ¶371 (India).

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MEMORANDUM for RESPONDENT [ARGUMENTS]

classification has also been clubbed with the class of countries which face persecution and class
of time when these people entered the Federal Republic of Mayeechin.
¶ [97]. Therefore, it is submitted that CAA is already based on intelligible differentia.

c) CAA’s minimal under inclusiveness does not vitiate the classification

¶ [98]. Mere production of inequality is not enough to hold that equal protection has been
denied.129 For, every selection of person for regulation produces inequality in some degree. 130
Marginal over inclusiveness or under inclusiveness, will not vitiate the classification. 131
¶ [99]. In the impugned case, CAA specifically provides citizenship to illegal immigrants
belonging to persecuted religious minorities from Pakistan, Bangladesh and Afghanistan
covering most of the persecuted minorities of the neighbouring countries. It excludes other
illegal immigrants from the purview of the classification.132
¶ [100]. Therefore, it is submitted that the Minimal under inclusiveness of a statute will
not vitiate the classification

2. DIFFERENTIAL HAS A RATIONAL RELATION TO THE OBJECT OF THE ACT

¶ [101]. It is humbly submitted that there is a rational relation between the intelligible
differentia and the object sought to be achieved by the statute as firstly, there is presumption in
favour of the constitutionality of the impugned act (a); andlastly, nexus between intelligible
differentia and object of the act are already present (b).

a) There is presumption in favour of the constitutionality of the Act

¶ [102]. It must be presumed that the legislature understands and correctly appreciates
the need of its own people.”133
¶ [103]. In the impugned case, the legislature of Mayeechinbeing a democratically
elected body understands the needs of its people. In such scenario, it must be presumed that its
discriminations are based on adequate grounds.
¶ [104]. Therefore, it is submitted that there is Presumption in favour of the
constitutionality of the Constitutional Amendment Act.

129
Ganga Ram v. Union of India, (1970) 1 SCC 377, ¶2 (India).
130
Chiranjit Lal Chowdhuri v. Union of India, 1950 SCR 869, ¶86 (India).
131
Basheer v. State of Kerala, (2004) 3 SCC 609, ¶20 (India).
132
The Citizenship (Amendment) Act, 2019, No. 47, Act of Parliament, 2019 (India).
133
Ashutosh Gupta v. State of Rajasthan, (2002) 4 SCC 34, ¶5 (India).

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MEMORANDUM for RESPONDENT [ARGUMENTS]

b) Nexus between intelligible differentia and object of the Act is already present

¶ [105]. The object of the act is ascertained from an examination of its title, preamble
and provisions.134 and other relevant materials, e.g. objects and reasons.135
¶ [106]. In the impugned case, the object of CAA as stated in the object clause is that
only persecuted religious minorities have to be clubbed together and not every religious
minority. This is because the object of the act is to protect only minorities from neighbouring
countries with a state religion, to persons, belonging to these communities that do not follow
the state religion and are being persecuted on the basis of religion in these countries 136, by
making it easier for them to escape persecution and to acquire citizenship.
¶ [107]. Therefore, it is submitted that nexus between intelligible differentia and object
of the actis already present.

B. THE IMPUGNED ACT IS NOT IN VIOLATION OF THE PRINCIPLE OF SECULARISM

¶ [108]. The concept of secularism to put it in a nutshell is that the ‘state’ will have no
religion.137 Secularism “does not mean that the state has no say whatsoever in matters of
religion.138 The state shall not discriminate against any citizen on the ground of religion only.139
¶ [109]. A law will be anti-secular only if it can hold that law violates any the articles
25 to 28140, and not because of any supposed ‘creed’. 141 Courts of law should have nothing to
do with any supposed spirit or creed, or the policy behind a provision. 142 In the impugned case,
the determining principle is not solely based on religion.143 Additionally, CAA has been under
the power to regulate citizenship laws conferred under Article 11 144 and it does not curtail the
freedom of the conscience and the right to freely profess; practice and propagate one's own
religion in any form.145
¶ [110]. Therefore, it is submitted that the impugned act is not in violation of the
principle of secularism.

134
Kedar Nath Bajoria v. State of W.B., 1954 SCR 30, ¶7 (India).
135
Jagdish Pandey v. Chancellor, University of Bihar, (1968) 1 SCR 231, ¶8 (India).
136
The Citizenship (Amendment) Bill, 2019, No. 370, Bills of Parliament, 2019 (India).
137
Bal Patil v. Union of India, (2005) 6 SCC 690, 694 (India).
138
S.R. Bommai v. Union of India, (1994) 3 SCC 1, 29 (India).
139
Supra note 98 at 291.
140
S. P. Mittal v. Union of India, (1983) 1 SCC 51, 89 (India)
141
1 D. D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 568 (9th ed. 2014)
142
State of Bombay v B.E.S., AIR 1954 SC 561
143
The Citizenship (Amendment) Bill, 2019, No. 370, Bills of Parliament, 2019 (India).
144
INDIA CONST. art. 11.
145
The Citizenship (Amendment) Act, 2019, No. 47, Act of Parliament, 2019 (India).

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MEMORANDUM for RESPONDENT [PRAYER]

PRAYER

Wherefore, in the light of the issues raised, arguments advanced, reasons given and authorities
cited, it is most humbly prayed before this Hon’ble Court, that it may be pleased to:

A. Declare that, a judge who has expressed opinion as part of the referring bench, ought not
to participate in the larger bench hearing the referred case.
B. Declare that, the master of roster must not be deemed to include five senior-most judges
of the Supreme Court.
C. Declare that, it is outside the purview of this Court to lay down any guidelines in this
regard.
D. Declare that, the fees of lawyers must not be regulated as prayed by the Petititoner.
E. Declare that, the constitutional amendment inserting Article 21B is constitutional and is
not liable to be struck down.
F. Declare that, the Citizenship Amendment Act, 2019 is constitutional and is not liable to
be struck down.
G. Also, pass any other relief that the Hon’ble Court may be pleased to grant in favour of
the Respondent in the interest of justice, equity and good conscience, all of which is
respectfully submitted.

And for this act of kindness the respondents as are duty bound shall ever pray.

DATE: 20/02/2020 (S/d)

PLACE:Supreme Court of Mayeechin (Counsels for the Respondent)

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